State of Louisiana v. Jose Isreal Ayala, III

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-1042
STATE OF LOUISIANA
VERSUS
JOSE ISREAL AYALA, III
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APPEAL FROM THE

THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 87,354
HONORABLE VERNON B. CLARK, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders and
Van H. Kyzar, Judges.

AMENDED AND AFFIRMED.

Peggy J. Sullivan

Louisiana Appellate Project

P. O. Box 2806

Monroe, LA 71207-2806

(318) 855-6038

COUNSEL FOR DEFENDANT/APPELLANT:

Jose Isreal Ayala, III

Asa Allen Skinner

District Attorney

Terry Wayne Lambright

First Assistant District Attorney

30 Judicial District

P. O. Box 1188

Leesville, LA 71446-1188

(337) 239-2008

COUNSEL FOR APPELLEE:
State of Louisiana

KYZAR, Judge.

The Defendant, Jose Isreal Ayala, III, appeals his sentence imposed following
a guilty plea to the offense of aggravated escape, entered pursuant to a plea
agreement with the State of Louisiana. For the reasons assigned, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 3, 2015, the State filed a bill of information charging Defendant
with attempted aggravated escape, a violation of La.R.S. 14:110(C) and La.R:S.
14:27,' and three companion charges. The charges proceeded under trial court
docket number 87,354. Defendant was also charged under a separate docket number
with second degree murder and obstruction of justice, though the matters were not
consolidated with the instant case. On April 27, 2017, Defendant entered a plea of
guilty pursuant to a plea agreement with the State to aggravated escape in addition
to a charge of manslaughter, reduced from an original indictment for second degree
murder, and obstruction of justice, in cases proceeding under the other docket
number, 86,777. The three companion charges from the bill of information in docket
number 87,354 that included the aggravated escape charge were dismissed as part of
the plea agreement.

The following factual recitation by the prosecutor appears in the record:

BY MR. MASON:

Yes, Your Honor, may it please the court, the State contends

that, on or about September 2nd of 2014, Deputy Dalme of the Vernon

Parish Sheriff's Office was returning an inmate to S-Cell 1, located at

the Vernon Parish Jail at 203 South 3rd Street, Leesville, Vernon Parish,

Louisiana. After returning the inmate to his cell, Deputy Dalme

proceeded to $-Cell 2 to escort an inmate by the name of “Griffin” to

the front office for his nightly glucose check. Upon opening S-Cell 2,

defendant, Jose Ayala, struck Deputy Dalme multiple times in the face

and intentionally departed from S-Cell 2 and from the custody of

Deputy Dalme and ran toward the front of the jail. The defendant,
thereafter, entered the main office of the jail and rushed Deputy Tom

' The bill of information referenced the underlying crime statute but did not reference the
attempt statute, La.R.S. 14:27.

Scott, who was seated in the office. The defendant then proceeded to
yell profanities at Deputy Scott and started striking the deputy on the
side of his face and the back of his head using a closed fist. As a result
of the attack, Deputy Scott fell from his chair onto the floor, at which
time the defendant continued to strike Deputy Scott in the face until
Deputy Dalme was able to return to the main office and assist Deputy
Scott in pushing the defendant and inmate Griffin out of the office and
into the hallway. Once Deputy Dalme returned and was in the office
with Deputy Scott, Deputy Dalme observed Jose Ayala with a set of jail
keys attempting to open the gate between Bullpen 2 and Bullpen 4.
Deputy Dalme yelled commands to the defendant and at Griffin to
return to their cells, at which time they retreated slowly. Thereafter,
other agents, law enforcement arrived and secured the defendant and
the inmate, Griffin, in their cells. As a result of this incident, Deputy
Dalme suffered injury and Deputy Scott suffered severe injuries to his
face and to his head that resulted in treatment by the hospital and
physicians located there. And, Your Honor, also, with regards to this,
the State’s recitation of facts, the State would also move to incorporate
all discovery responses filed by the State and the suit record in its
entirety.

On June 29, 2017, the district court sentenced Defendant to ten years at hard
labor for aggravated escape, to be served consecutively to his other sentences and to
be served without benefit of parole. A written motion to reconsider sentence was
filed on July 7 and denied by the trial court on July 12.2 Defendant now seeks review
of the ten-year sentence imposed herein.’

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find that there
is a possible error patent concerning the offense to which Defendant pled guilty and
an error patent involving the sentence imposed.

Defendant was originally charged in this docket number with four counts, all

felonies. In the bill of information, Defendant was charged with attempted

2 The Motion to Reconsider Sentence bears both trial court docket numbers.

+ Defendant’s charges and sentences under docket numbers 87,354 and 86,777 were
addressed together at the plea hearing and the sentencing hearing. Defendant has also appealed his
sentences in 86,777. As the cases were not consolidated, the appeals bear two docket numbers
with this court: 17-1041 and 17-1042.

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aggravated escape in “Count 1”, that “on or about September 2, 2014, defendant did
intentionally attempt to depart from legal custody under circumstances wherein
human life was endangered, in violation of R.S. 14:110.C. (Felony).”* Defendant
indeed understood that charge to be attempted aggravated escape as reflected in a
Motion for Preliminary Examination and Bond Reduction wherein he alleged, “The
defendant has been charged herein with Attempted Aggravated Escape, Taking
Contraband To & From Penal Institutions, two (2) counts Battery of a Correctional
Facility and has not been indicted by a Grand Jury.” On April 27, 2017, Defendant
entered a plea of guilty, pursuant to a plea agreement, to the completed offense of
aggravated escape. However, at no time did the State move to amend the bill of
information to upcharge Defendant from the original attempt count. While it is clear
that a “defendant, with the consent of the district attorney, may plead guilty to a
lesser included offense to the offense charged in the indictment” without any formal
amendment to the information or indictment as per La.Code Crim.P. art. 558, and
that “the district attorney shall not be required to file a new indictment to charge the
crime to which the plea is offered” when the defendant pleads to a non-responsive
charge as per La.Code Crim.P. art. 487(B), Defendant here pled guilty to the
completed offense of aggravated escape, not the lesser included offense, and there
was no amendment of the bill of information. While a “trial judge is not without
jurisdiction to accept a defendant’s knowing and voluntary guilty plea simply
because the plea is not responsive to that charged in the bill of information and the
district attorney has not amended the bill to conform to the plea” and we are no

longer required to view such as an error patent, this does not “alter the fundamental

* The bill does not contain the statutory citation for attempt, La.R.S. 14:27. However, as
will be discussed in this opinion, the omission did not mislead Defendant to his prejudice. La.Code
Crim.P. art. 464. Defendant understood he was charged with attempt and he knowingly and
intelligently pled guilty to the completed offense pursuant to a plea agreement.

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requirement that prosecution be properly instituted by bill of information that
informs the accused of the nature of the accusations against him nor does it alter the
requirement that a defendant’s guilty plea be voluntarily and intelligently made” as
a “nonresponsive guilty plea made without an amended bill might raise the concern
that a defendant did not understand the nature of the charges against him.” State v.
Jackson, 04-2863, p. 14 (La. 11/29/05), 916 So.2d 1015, 1023.

The state of the record herein requires us to ascertain whether Defendant
actually entered the plea of guilty to aggravated escape or whether it was intended
to be a plea of guilty to the originally charged offense of attempted aggravated
escape. The consequence matters greatly here, as the penalty imposed on Defendant
was ten years, the maximum sentence for the completed offense, whereas the
maximum penalty for an attempted aggravated escape is only five years. La.R.S.
14:27.

At sentencing, the trial court alluded that Defendant was being sentenced for
attempted aggravated escape, stating, “Now, to the, uh, to the sentencing itself, ....
In 87,354, the attempted aggravated escape, while he was incarcerated” and later
stated that, “He never did make it out of the jail. Thus, the -- the -- the -- the charge
-- but it doesn’t matter if he did, or not, the simple escape started when he jumped
on the deputy and he left that cell without any approval from anyone”. Despite this
wording, the trial court went on to impose the maximum sentence for aggravated
escape. In addition, the minutes of court refer to the original “Count 1” charge in
this matter on multiple occasions as simple escape.°

A review of the record from Defendant’s plea entered on April 27, 2017

reflects that Defendant in fact pled guilty to the completed offense of aggravated

> When there is a conflict between the transcript and the minutes, the transcript prevails.
State v. Salameh, 09-1422, p. 3 (La.App. 3 Cir. 5/5/10), 38 So.3d 568, 569.

escape after being fully advised of the correct charge and the maximum sentence for
the completed charge.
BY THE COURT:

Okay, lastly, under Number 87,354, the -- the charge of aggravated escape,
under Title 14, Section 110C, reads: “Aggravated escape is the intentional
departure of a person from the legal custody of any officer of the Department
of Public Safety and Corrections or any law enforcement officer or from any
place where such person is legally confined when his departure is under
circumstances wherein human life is endangered.” Do you understand those
elements?

A. I understand, Your Honor

Q. And the penalty provisions there are --

BY MR. MASON:

And, Your Honor, those would be in paragraph C (2).

BY THE COURT:

C (2), yes.

Q. Whoever commits an aggravated escape is herein defined -- as herein
defined, shall be imprisoned at hard labor for not less than five years or more
than ten years and any sentence on this offense shall not run concurrent with
any other sentence. Do you understand that?

A. I understand, Your Honor.

Q. And that means that, in this case, on the three charges I would sentence
you on, I have to run the sentence I give you on the aggravated escape
consecutive to the other two sentences. You understand that?

A. I understand, Your Honor.

Q. All right, sir. Now, you heard your attorney cite what the agreement is.
You’d plead to the lesser charge of manslaughter. You would plead to the
charge of obstruction as charged, and you would plead to the charge of
aggravated escape. In return, the State agrees to accept your plea to the lesser
charge of manslaughter and to dismiss Counts 2, 3, and 4 on Bill of
Information Number 87,354. Is that correct, sir?

A. That’s correct, Your Honor.

Q. All right. Did they or did I leave anything out that you have been led to
believe is part of the deal?

A. No, Your Honor.

Q. We’ve covered it completely?

A. Yes, Your Honor.

The trial court fully advised Defendant of the nature of the charge of
aggravated escape and the penalty therefor, his constitutional rights in connection
with his plea, and found that Defendant knowingly and voluntarily waived his rights
in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969).
Additionally, we find there was no misunderstanding as to the actual charge being
pled to pursuant to the plea agreement considering the transcript from the plea itself,
and further considering the affidavit of understanding of rights and nature of the plea
that was executed and filed contemporaneously with the plea indicating that
Defendant was pleading to the completed offense of aggravated escape. See State v.
Readoux, 614 So.2d 175 (La.App. 3 Cir. 1993). Thus, we conclude that Defendant
entered a knowing, intelligent and voluntary plea to aggravated escape as per the
plea agreement and was sentenced for the completed offense.

We do, however, find that Defendant received an illegally excessive sentence
for aggravated escape in this case, though this error likewise does not require a
reversal and remand. Defendant was sentenced to serve ten years at hard labor
without benefit of probation, parole, or suspension of sentence. Louisiana Revised
Statutes 14:110 does not require that the sentence be served without benefit of
probation, parole, or suspension of sentence. This in and of itself does not require
the reversal of the sentence. As stated by this court in State v. Hurst, 10-1204, pp.
5-6 (La.App. 3 Cir. 4/13/11), 62 So.3d 327, 332, writ denied, 11-975 (La. 10/21/11),
73 So.3d 383:

The trial court imposed an illegally excessive sentence on the

conviction of purse snatching. The trial court sentenced Hurst to twenty
years at hard labor without the benefit of probation, parole, or

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suspension of sentence. Louisiana Revised Statutes 14:65.1 does not
prohibit the benefits of probation, parole, or suspension of sentence.
Although the trial court has discretion to refuse to suspend the sentence,
the trial court does not have discretion to deny parole eligibility when
the penalty provision does not authorize such a denial. Accordingly,
this court amends Hurst’s sentence to delete the denial of parole. See
State v. Yancy, 93-2798 (La.5/3 1/96), 673 So.2d 1018; State v. Buckley,
02-1288 (La.App. 3 Cir. 3/5/03), 839 So.2d 1193. See also State v.
Sanders, 04-17 (La.5/14/04), 876 So.2d 42 (stating that an appellate
court should not rely on the self-activating provisions of La.R.S.
15:301.1 when the trial court imposes limits beyond those statutorily
authorized). This court also instructs the trial court to make an entry in
the minutes reflecting this change. See State v. Tate, 99-1483
(La.1 1/24/99), 747 So.2d 519.

Accordingly, Defendant’s sentence will be amended to delete the denial of
parole eligibility, and the trial court is instructed to make an entry in the court
minutes and on the commitment order reflecting this change.

ASSIGNMENT OF ERROR

Defendant asserts that his ten-year sentence is excessive.® Pursuant to La.R.S.

14:110, this is the maximum sentence for aggravated escape.’

To find that a sentence is excessive, this court must conclude that
the penalty is so grossly disproportionate to the severity of the crime as
to shock the sense of justice or that the sentence makes no measurable
contribution to acceptable penal goals and, therefore, is nothing more
than needless imposition of pain and suffering. State v. Campbell, 404
So.2d 1205 (La.1981); State v. Everett, 530 So.2d 615 (La.App. 3
Cir.1988), writ denied, 536 So.2d 1233 (La.1989). In light of the
criteria expressed by Article 894.1, a review for excessiveness of an
individual sentence should consider the circumstances of the crime and
the trial court’s stated reasons and factual basis for its sentencing
decision. State v. Lewis, 489 So.2d 1055, 1061 (La.App. 1 Cir.), cert
denied, 493 So.2d 1218 (La.1986).

State v. Texada, 98-1647, pp. 19-20 (La.App. 3 Cir. 5/5/99), 734 So.2d 854, 865.

° Defendant’s heading in brief indicates there are two assignments of error, and the State
responds in kind. However, there is essentially one argument addressing two sub-issues. Defendant
did not assert that the sentence was excessive as having been ordered to be served without benefits.

TLa.R.S. 14:110 requires that the sentence run consecutively to any other sentence imposed.

7

Sentences falling within statutory sentencing ranges may still be
unconstitutionally excessive if they shock the sense of justice or make no meaningful
contribution to acceptable penal goals. Several factors may be considered when
reviewing such a sentence for excessiveness:

[A]n appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative purpose
behind the punishment and a comparison of the sentences imposed for
similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501.
While a comparison of sentences imposed for similar crimes may
provide some insight, “it is well! settled that sentences must be
individualized to the particular offender and to the particular offense
committed.” State v. Batiste,594 So.2d 1 (La.App. 1 Cir.1991).
Additionally, it is within the purview of the trial court to particularize
the sentence because the trial judge “remains in the best position to
assess the aggravating and mitigating circumstances presented by each
case.” State v. Cook, 95-2784 (La.5/3 1/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ
denied, 03-562 (La. 5/30/03), 845 So.2d 1061.
In pronouncing the sentence for the aggravated escape charge herein,’ the
district court stated:
Now, to the, uh, to the sentencing itself, ....

In 87,354, the attempted aggravated escape, while he was
incarcerated, after his arrest on this charge, he, uh, he and other --
another inmate was [sic] able to obtain the presence of Deputy Dalme
in the cell and this defendant jumped on the deputy, struck him
repeatedly, caused some injuries and then he made his way out of the
cell towards the front area of the jail towards the office area and he was
confronted by Deputy Scott, who he then got into a fight with and
injuries resulted from that to the deputy. He never did make it out of
the jail. Thus, the -- the -- the -- the charge -- but it doesn’t matter if he
did, or not, the simple escape started when he jumped on the deputy and
he left that cell without any approval from anyone. And, quite frankly,
that’s -- that’s what we have here. Now, the plea agreement and there
was one in all these cases of -- of different -- different plea agreements,
but in this case, he was charged with second degree murder. He entered
a plea to a lesser included charge of manslaughter, and the State agreed
to accept that. He also agreed to plead to Count 2, the obstruction of
justice, and the other bill of information concerning the escape. Uh, the

8 Although the trial court stated the charge was attempted aggravated escape, Defendant in
fact pled guilty to aggravated escape as addressed above.

8

State dismissed Counts 2, 3, and 4, other charges contained in eight --
87,354, and, uh, he -- he has benefitted substantially from the plea
agreement. Instead of a life sentence, which is mandatory for second
degree murder, his exposure now is less on each of these charges. Uh
and -- and, so, there’s substantial benefit here from this, uh, and that’s
some of the things that the court has considered. As I said, there are
numerous letters from the victim’s family and friends, uh, and I did read
those documents | referred to from Mr. Ayala and also a -- the
expandable folder -- folder of things including statements given by
other witnesses, as I noted, some of whom Mr. Ayala noted or referred
to or referenced in his -- in his letter to the court in the attachments. |
see no substantial grounds which would tend to excuse his criminal
conduct, and this is -- these are factors under Article 894.1 of the Code
of Criminal Procedure. He’s young, he’s 27 years of age. He served in
the United States Army, he was an M. P. at one time. He is single. He’s
in good health. He was discharged from the United States Army after
he had been, on multiple times, found to be using or -- or -- or have
possession of marijuana. And, uh, one would think that an M_P., first
of all, would know the consequences of that and, certainly, one would
think that if he got hit the first time with punishment for an infraction,
he would not do it again but, ultimately, he did, and the Army gave him
a general discharge. He received his G.E.D., uh, high school education
G.E.D. in 2009. He admitted to the use of alcohol, marijuana, and
cocaine in the past. While in the United States Army, in 2012, he had
counseling or treatment for his marijuana problem. He had a prior
record in that there are three convictions for marijuana use in the United
States Army. He has no convictions in the civilian arena.

Although the trial court sentenced Defendant to the maximum term of ten
years for aggravated escape, Defendant received a substantial benefit by his plea
agreement with the State, that included the reduction of a second degree murder
charge to manslaughter in another case, and the benefit of the dismissal of other
charges filed within trial court docket number 87,354 in the instant case, including
two counts of battery on a correctional facility employee, and introduction of
contraband into a penal facility, all felony offenses. Indeed, the maximum
sentencing exposure faced by Defendant prior to the plea agreement was life,

without the possibility of parole for second degree murder, plus sixty-five years in

prison, twenty-five of which would be required to run consecutively to the other

sentences.’
Generally, maximum sentences are reserved for the most serious
violation of the offense and the worst type of offender. State v.
Russell, 42,479 (La.App. 2 Cir. 9/26/07), 966 So.2d 154, 156, writ
denied, 07-2069 (La.3/7/08), 977 So.2d 897. However, “where a
defendant has pled guilty to an offense which does not adequately
describe his conduct or has received a significant reduction in potential
exposure to confinement through a plea bargain, the trial court has great
discretion in imposing even the maximum sentence possible for the
pled offense.” State v. Falcon, 44,829, p. 4 (La.App. 2 Cir. 10/28/09),
26 So.3d 172, 175.

State v. Herbert, 12-228, pp. 5-6 (La.App. 3 Cir. 6/13/12), 94 So.3d 916, 920, writ
denied, 12-1641 (La. 2/8/13), 108 So.3d 78.

In the instant case, the trial court gave extensive reasons for the sentence
imposed and thoroughly considered, as required by La.Code Crim.P. art. 894.1, the
background of Defendant, the circumstances surrounding the aggravated escape
charge, including the facts presented that two deputies were injured in the crime,
with one suffering serious face and head injuries, the benefit received by Defendant
from the reduction of the second degree murder charge to manslaughter in the overall
plea agreement with the State, and the dismissal of three other felony charges
pending. Considering this, we do not find the maximum sentence imposed for
aggravated escape to be excessive.

DECREE

For the reasons herein, we affirm Defendant’s sentence of ten years at hard
labor with the Louisiana Department of Corrections, to run consecutively to the other
sentences Defendant is ordered to serve. However, we amend the sentence to reflect

that Defendant is entitled to the benefit of parole eligibility, and the trial court is

° La.R.S. 14:130.1, Obstruction of Justice, provides for a maximum of forty years in prison.
La.R.S. 14:34.5 provides a maximum sentence of five years, which must be imposed consecutively
to any other sentence. La.R.S. 14:402 provides for a maximum penalty of five years for a violation
of section E thereof, to be run consecutively with any other sentence.

10

instructed to make an entry in the court minutes and on the commitment order

reflecting this change.

AMENDED AND AFFIRMED.

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